Delaware and Hudson Canal Co. v. Carroll

• Decision Date: 07 May 1879
• Parties: Delaware and Hudson Canal Co. <I>versus</I> Carroll.
• Court: Pennsylvania Supreme Court

Page 374

89 Pa. 374

Delaware and Hudson Canal Co. versus Carroll.

Supreme Court of Pennsylvania.

March 10, 1879.

May 7, 1879.

March 10th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 223.

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Stanley Woodward and Andrew T. McClintock, for plaintiffs in error.—The court erred in assuming that the suit was brought under the Act of 1870. It was in fact brought under the Act of April 26th 1855, and the declaration is at common law, for death caused by negligence. There was no evidence, however, to show that defendants had not conformed to the Act of 1870; that the injury was the result of defective ventilation, or that those in charge of the mine were incompetent. The jury were misled by the charge, and in the submission of the case as entirely under the Act of 1870. There was no evidence that the duties imposed upon the mining-boss "constituted a distinct branch of the mining operations," or that the mining-boss had neglected a single duty, or was in any manner incompetent to fulfil the duties of his position, or that he had any authority to employ or dismiss a single miner or laborer, or to employ or dismiss his assistants, the fire-bosses, or that he failed in any way to employ or select competent and careful assistants, or had in any way the right or duty to employ or select his assistants.

It was error, therefore, to instruct the jury, as a matter of law, that the mining-boss was not a co-employee, but the agent of the company, and that under the evidence they might inquire into the question of his negligence.

No distinction was taken by the court, in their charge, between the liability of the defendants for the negligence of Moore, the mining-boss, or of McDonald, the fire-boss, and the jury are left to infer that the same rule would apply, whichever of these employees the jury might find to have been guilty of negligence.

The testimony of Dakin is in contradiction of the testimony of McDonald and Gray, the fire-bosses, in regard to notice to Carroll that there was gas in his chamber. It does not refer to Moore, the mining-boss, or prove any neglect on part of Moore. If taken as true, it only proves that McDonald, the fire-boss, was negligent in not warning Carroll of the presence of gas in his chamber. And assuming that McDonald did not discharge his duty, such failure was the negligence of a co-employee. The defendant certainly was at least entitled to have the question submitted to the jury, under the evidence, whether or not McDonald was the agent of the company, or a co-employee with Carroll; whether or not they were employed in the same general business, and fellow servants therein. That question was taken from the jury, and the binding instruction given, that "if John Dakin's testimony was true," they must find for the plaintiffs.

Mullen v. Steamship Co., 28 P. F. Smith 25, does not sustain the charge of the court.

The miner and the mine-boss and his assistant were "acting together, under one master, in carrying out a common object," employed in the same mine and in the same general business, and must, therefore, under the well-settled authorities, be held to be fellow servants: Morgan v. Vale of Neath Railway Co., Law Rep. 1 Queen's B. 149; Howells v. Landore Siemens Steel Co., Law Rep. 10 Queen's Bench 62; Murray v. Currie, Law Rep. 6 Common Pleas 24; Feltham v. England, Law Rep. 2 Queen's Bench 33; Gallagher v. Piper, 111 Eng. C. L. 668; Murphy v. Smith, 115 Id. 361; Wilson v. Murray, Eng. L. Rep. 1 H. L. Scotch Cases 326; Caldwell v. Brown, 3 P. F. Smith 453. The principle governing this case was decided in the recent case of the Lehigh Valley Coal Co. v. Jones, 5 Norris 432, where a mining-boss was held to be a "fellow servant."

Henry W. Palmer, Charles Pike and John Lynch, for defendants in error.—The company did not have the necessary appliances to supply the requisite quantity of fresh air, and are responsible for an accident resulting therefrom.

The Lehigh Valley Coal Co. v. Jones, is distinguishable from this case. There was a superintendent in that case who had control of the mine. Here it was not shown that there was any other superintendent than the mining-boss. He was in charge of the mine and stands next to the company. He is the superintendent, and should be considered so under the ruling in the Lehigh Valley Coal Co. v. Jones, supra.

In case of a corporation like the plaintiffs, "It is not the company but the officer to whose care is committed this particular department of its business, who is expected to use ordinary care in the conduct thereof, and whose negligence therein is the negligence of the company:" Mullen v. Steamship Co., 28 P. F. Smith 25. A master is liable for injuries suffered by his servants, where, by his own negligence or malfeasance, he has enhanced the risk to which the servant was exposed by the natural risk of the employment, or has knowingly, and without informing the servant, used defective machinery which has caused the injury: Wedgwood v. C. & N. W. Railroad Co., 41 Wis. Rep. 478; The Cumberland & Pa. Railroad Co. v. The State of Maryland, use of Morgan, Court of Appeals, Maryland, 2 L. & E. Rep. 529; Cayzer v. Taylor, 10 Gray (Mass.) 474: Snow v. Housatonic Railroad Co., 8 Allen (Mass.) 441; Fifield v. Northern Railroad Co., 42 N. H. 225; Noyes v. Smith, 28 Vt. 59.

Mr. Justice PAXSON, delivered the opinion of the court, May 7th 1879.

This was an action on the case brought by the widow and minor children of John Carroll, deceased, against the Delaware and Hudson Canal Company, to recover compensation for injuries to the said John Carroll, resulting in his death.

We are unable to say that the court below erred in its charge to the jury, as contained in the first specification, that the action was brought under the provisions of the Act of Assembly, passed March 3d 1870, entitled, "An act to provide for the health and safety of persons and property in coal mines." The declaration is not given, but we infer from the points submitted, the charge of the court, and the manner in which the case was tried, that the action was under the Act of 1870. The plaintiffs below evidently so regarded it, and it is no hardship to them to dispose of the case upon that theory.

Assuming then that the action was so brought, what are the responsibilities of the defendants under the act? The 24th sect. thereof provides (see Pamph. L. 1870, p. 12,) that "For any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions by any owner, lessee, or operator of any coal mine or opening, a right of action shall accrue to the party injured for any direct damages he may have sustained thereby; and in case of loss of life by reason of such violation or wilful failure aforesaid, a right of action shall accrue to the widow and lineal heirs of the person whose life shall be lost, for like recovery of damages for the injury they shall...